In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright.. Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.” Today the Review will be published. Its conclusion? “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review. (Full disclosure: I was on the Review’s panel of expert advisors.)

The Review makes 10 specific recommendations covering patent, copyright and the policy-making process. Some examples: Patent law needs reform to prevent the formation of “thickets” that actually impede innovation, while patents should never be extended to non-technical software inventions or business methods. We found that while patents are working well for standalone innovations, such as a particular drug developed to treat a particular disease, there are problems in technical fields marked by “sequential innovation” such as information technology.

In the copyright realm, the Review found that our system for dealing with “orphan works” – copyrighted works whose author cannot be found – is broken. As a result, a vast swath of twentieth century culture languishes in our libraries, commercially unavailable and with no one who can give permission for reproduction or republication. It proposes a solution involving a mixture of collective licensing and individual exemptions so that national libraries and individual enthusiasts can digitize the nation’s culture. At the moment, copyright law operates as a one-way valve, locking up these portions of our collective heritage while providing a benefit to no one. Fixing this problem, the Review notes, has no economic downside whatsoever.

Copyright is supposed to make, not to break, markets. Yet the Review found that innovative digital businesses were strangling in the tangled web of licensing copyright has created. As technologies have developed, copyright has created right after right to deal with them, each jealously guarded by its own collection society. Pity the poor entrepreneur who wants to create a new legal business and finds that technological happenstance means multiple rights are involved. This is good for no one (except the middle-men.) The Review suggests that Britain needs to seize the leadership role and become the center for a frictionless, radically simplified, licensing market.

More broadly, the Review argues forcefully that in the future, British intellectual property policy should be evidence-based. As opposed to what, you might ask. Astrology-based? Bizarrely, evidence-based policy is a rarity in the world of intellectual property, while intuition, celebrity endorsement and anecdote run rampant. The Review argues we need to junk this method of doing business and base policies on transparent and rigorous economic methods and not, to use its phrase, “lobbynomics.”

The Review noted that there was a pattern of dysfunction in the way policy had been made; rights had been extended despite clear evidence that this provides no economic benefit, such as retrospective copyright term extension, while reforms languished despite the obvious irrationality of some aspects the current system, such as orphan works. Its conclusion is striking.

“Lobbying is a feature of all political systems and as a way of informing and organising debate it brings many benefits. In the case of IP policy and specifically copyright policy, however, there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes. Further distortion arises from the fact (not unique to this sector) that there is a striking asymmetry of interest between rights holders, for whom IP issues are of paramount importance, and consumers for whom they have been of passing interest only until the emergence of the internet as a focus for competing technological, economic, business and cultural concerns.”

Whether this Review and the revised institutional arrangements and evidence-based focus can fix that problem is another question. But at least the problem has been identified.

The issue that attracted most attention was David Cameron’s suggestion that Britain might adopt a “fair use” limitation on copyright, like that of the United States, which could adapt to new technologies and kinds of use. This prompted a deluge of submissions from businesses claiming that a fair use standard would destroy the UK creative industries; curious given the flourishing state of the US creative economy. In the words of the Review, this success “does not stop important American creative businesses, such as the film industry, arguing passionately that the UK.. should resist the adoption of the same US style Fair Use approach with which these firms coexist in their home market.” As an expat Brit, pride in my countrymen’s use of irony has rarely been higher.

In any event, the Review took a different tack. First, it notes that “fair use” is only one out of many limitations that allow US copyright law to adapt to new technology while still protecting creators. The question is how to get those same benefits in UK law. Submissions to the Review were divided on the question of whether EU law would allow the UK today to adopt an open-ended exception to copyright such as fair use. As a legal scholar, I was impressed by the arguments put forward by Cambridge professor Lionel Bently that EU law would permit such an approach, but the Review’s legal advisors disagreed. Significantly, the Irish government has just announced a similar review to see if its copyright laws need a fair use provision. We shall see if it comes to the same conclusion.

The Review’s approach was a multi-part strategy. First, it favours a bevy of individual limitations – maxing out the exceptions permitted by EU law. Private individuals should finally be able to format shift content they have bought. There should be a broad exception for archival copying. Copyright law should no longer impede scientific research by blocking text and data mining of the scientific literature. Parody and criticism should receive more robust protection. But what of the effect of copyright on disruptive technologies? Here the Review favoured an EU wide approach, and one with teeth. “The UK should give a lead at EU level to develop a further copyright exception designed to build into the EU framework adaptability to new technologies… The Government should also legislate to ensure that these and other copyright exceptions are protected from override by contract.”

When I accepted Baroness Wilcox’s invitation to join the Review I was told that advisors would not be held out as agreeing to all of its conclusions. That was fair and I don’t. The section on enforcement, for example, pulls back from the obvious conclusion to its analysis: radical private enforcement measures like the Digital Economy Act are deeply problematic. Still, for anyone who cares about fostering innovation while protecting creators? The Hargreaves Review is worth a read. In the short run, the fact that it actually “names” the dysfunctions of our current policy process will cause high blood pressure for some. But in the long run, I think the streamlined, low transaction cost, evidence-based intellectual property system it suggests – a world with fewer patent thickets, fewer orphan works, fewer examples of copyright breaking instead of making markets – will actually be seen as profoundly positive not only for society, but for digital businesses themselves.

[...] so many times during the last decade: Is the UK intellectual property system working as it should? Now the answer is out, and it’s negative in more ways than one. The first negative is that the report conclude that the [...]

[...] . It recognizes the most important point of the serious problem of intellectual property laws are created so esoteric and not on evidence, which return to rationality seems very radical. The notion that laws [...]

[...] lawmaking on intellectual property should be “evidence-based”. As opposed to what, asks the legal scholar James Boyle: “Astrology-based?” But our lawmaking in this area has been so weird that the idea that [...]

[...] – overlapping intellectual property rights that impede technological innovation. According to James Boyle, a member of the review committee’s expert advisory panel, patent thickets are most prevalent in [...]

[...] Hargreaves Review published. The review evaluates the fitness of the UK’s intellectual property regime for an internet age. It finds that IP laws put in place several hundred years ago are now stifling modern innovation and goes on to make ten specific recommendations for IP law reform to correct the problem. These recommendations include approaches to clearing patent thickets; dealing with orphan works; and transitioning to evidence-based, rather than lobby-based, IP policy; as well as rejection of a US-like fair use limitation. [...]

I am posting here a draft of a chapter for Ruth Okediji’s forthcoming book on the possibilities of international intellectual property reform. In my case, the article recounts the lessons I learned from being part of the Hargreaves Review of Intellectual Property in the UK.

“In the five months we have had to compile the Review, we have sought never to lose sight of David Cameron’s “exam question”. Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes. We have found that the UK’s intellectual property framework, especially with regard to copyright, is falling behind what is needed. Copyright, once the exclusive concern of authors and their publishers, is today preventing medical researchers studying data and text in pursuit of new treatments. Copying has become basic to numerous industrial processes, as well as to a burgeoning service economy based upon the internet. The UK cannot afford to let a legal framework designed around artists impede vigorous participation in these emerging business sectors.” Ian Hargreaves, Foreword: Hargreaves Review (2011)

We are posting excerpts from our new coursebook Intellectual Property: Law and the Information Societywhich will be published in two weeks is out now! It will be is of course freely downloadable, and sold in paper for about $135 less than other casebooks. (And yes, it will include discussions of whether one should ever use the term “intellectual property.” ) The book is full of practice examples.. This is one from Chapter One, on the theories behind intellectual property: “What if you came up with the idea of Fantasy Football?” No legal knowledge necessary. Why don’t you test your argumentative abilities…?

Macaulay’s 1841 speech to the House of Commons on copyright law is often cited and not much read. In fact, the phrase “cite unseen” gains a new meaning. That is a shame, because it is masterful. (And funny.) One fascinating moment? When Macaulay warns that copyright maximalism will lead to a future of rampant illegality, as all happily violate a law that is presumed to have lost all moral legitimacy.

At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot… Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

The legal change he thought would do that? Extending copyright to the absurd length of life plus 50 years. (It is now life plus 70). Ah, Thomas, if only you could have been there for the Sonny Bono Term Extension debates.

Jennifer Jenkins and I are frantically working to put together a new open casebook on Intellectual Property Law. (It will be available, in beta version, this Fall under a CC license, and freely downloadable in multiple formats of course. Plus it should sell in paper form for about $130 less than the competing casebooks. The accompanying statutory supplement will be 1/5 the price of most statutory supplements — also freely downloadable.) More about that later. While assembling the materials for a casebook, one gets to revisit the archives, reread the great writers. Today I was revisiting Victor Hugo. Hugo was a fabulous — inspiring, passionate — proponent of the rights of authors, and the connection of those rights to free expression and free ideas.

Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks.

Academics (and others) arrange conferences. Perfectly normal people are invited to those conferences to speak. Most of them are just as charming as can be… but then there are the special ones. This Top 10 List of the special people one has to respond to is devoted to all conference planners everywhere. Hold your heads up high. After this, purgatory should be a snap.

August 28th, 2013 is the 50th anniversary of Martin Luther King’s “I Have a Dream” speech. The copyright in the speech is administered by EMI, with the consent of the King family. Thus the speech may not be freely played on video or reproduced and costlessly distributed across the nation — even today. Its transient appearance depends on the copyright owner’s momentary sufferance, not public right. It may disappear from your video library tomorrow. It has even been licensed to advertise commercial products, including cars and mobile phone plans.

Aaron Swartz committed suicide last week. He was 26, a genius and my friend. Not a really good friend, but someone I had worked with off and on for 11 years, liked a lot, had laughed with frequently, occasionally shaken my head over and deeply admired.

In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright.. Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.” Today the Review will be published. Its conclusion? “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review. (Full disclosure: I was on the Review’s panel of expert advisors.)

A slideshow and downloadable book remembering Keith in words and pictures. You can order a glossy, high quality copy of the book itself here from Createspace or here from Amazon. We tried to make it as beautiful as something Keith would create. We failed. But we came close; have a look at how striking it is… all because of Keith’s art.

The Brookings Institution has organized a volume on “The Future of the Constitution” edited by Jeff Rosen and Benjamin Wittes and featuring articles by me, Larry Lessig, Jonathan Zittrain, Tim Wu and many others. How will our constitutional tradition deal with the challenges posed by new technologies? The topics range from possible personhood claims by artificial intelligences, to the future of free speech and the Net, to neuroscience and criminal punishment. The essays are freely available online. Details after the jump.

On November 8th, Cory Doctorow, John Perry Barlow, and numerous other digital luminaries will be gathering at the Minna Gallery in San Francisco for the EFF’s Pioneer Awards Party. Cory is going to be the MC and — when not featured on XKCD blogging from a ballon in a red cape and goggles…